PER vol.16 no.4 Potchefstroom abr. 2013

This contribution is an introductory survey and preliminary evaluation of the conservation status of eagles in South African law. The methodology is primarily an interdisciplinary literature study of legal texts and texts from the natural sciences. Eagles are some of the largest and most powerful avian predators, and the human response to their presence is dualistic and polarised. At the one extreme, many people admire eagles, while at the other extreme they are perceived as a threat to economic and other interests, and may even be actively persecuted in a conviction that they are vermin. This duality in the human perception of eagles is also prevalent in South Africa and complicates their conservation. The mobility of eagles and other birds of prey means that they cannot be restrained by fencing national parks and other protected areas, and this heightens the likelihood of their entering into conflict with human interests. The conservation problems faced by eagles in South Africa can broadly be divided into direct and indirect threats. Direct threats include the intentional killing of eagles, and trade in eagles and their eggs. Indirect threats include non-targeted poisoning (where poisoned bait is used to control other predators, but eagles find the bait, feed on it, and succumb); habitat loss; mortality induced by dangerous structures; and disturbance. The legal status of eagles is influenced by a large body of legislative provisions, ranging from international and regional legal instruments, through national legislation, to provincial legislative measures. An overview of these provisions is given, with concise explanations of how they apply to the legal status of eagles and other birds of prey in South Africa. The conservation status of eagles in South African law is subsequently evaluated by considering the contribution of the applicable laws to three main types of conservation interventions. In respect of the first, habitat preservation, the relevant legal provisions contribute to an impressive array of conserved habitats in national parks and other protected areas. However, the mobility of eagles, and the fact that some species occur mainly outside protected areas, make it imperative for eagles also to be afforded legal protection outside of protected areas. In respect of the second type of intervention, namely management activities to conserve the species in their habitats, an inquiry is made into how the law addresses the threats of the intentional killing of eagles; trade in eagles and their eggs; non-targeted poisoning; mortality induced by dangerous structures; and disturbance. The protection is found to be sound in principle. In respect of the third and most intensive intervention, captive breeding, a regulatory framework is in place, but no such intervention on eagle species is known to be operative in South Africa. In conclusion a number of recommendations are made. The existing laws can be improved by aligning the legal status of species with their Red List status; listing all bird of prey species that are not Critically Endangered, Endangered, or Vulnerable, as Protected for the purpose of national environmental legislation; and, in the medium rather than the short term, considering the imposition of legal obligations on electricity suppliers to implement measures that will mitigate mortalities on electricity structures. Better application of the existing laws could be achieved by improving compliance and enforcement, and by facilitating the optimal use of Biodiversity Management Plans, environmental research, and environmental education.

In most countries where eagle species occur, they are the largest actively hunting carnivorous birds, and in many cultures humans respond in a dualistic and polarised manner to these avian predators. At the one extreme, many people admire eagles for their impressive appearance, physical strength, and powers of flight. Cultural expressions of human admiration of eagles include the deifying of eagles in ancient religions, the use of eagles in heraldry and advertising, and the portrayal of eagles in art and publications. At the other extreme, many people, especially those involved in small-stock and poultry farming, respond to the size, strength and carnivorous habits of eagles by regarding them as enemies or vermin, because they perceive eagles as a threat to their economic and other interests.1 This duality in human perception of eagles is also prevalent in South Africa, and it complicates their conservation.2 It also produces a challenge to the legislature and those tasked with the enforcement of environmental legislation. This challenge is not singular to eagles, and is readily apparent in respect of carnivorous mammals too, but the mobility of eagles and other birds of prey means that they cannot be restrained by fencing national parks and other protected areas, and this adds a compounding element in the case of these winged predators.

This contribution is an introductory survey and evaluation of the conservation status of eagles in South African law. Its aim is, first, to provide an overview of the laws relating to the conservation of eagles in South Africa, and, second, to offer critical remarks on the effectiveness and sufficiency of those laws. As will be elaborated upon shortly, not all the eagle species occurring in South Africa are resident birds. Some species are migratory and others are nomadic. Hence, the environmental law regime in force in South Africa has an influence on the conservation status of some eagle species breeding as far away as Europe and Asia.

The methodology employed was primarily an interdisciplinary literature study. Legal materials as well as texts from the natural sciences were consulted. The results are presented in three sections. In the first section (paragraph 2), an attempt is made to summarise pertinent information on the occurrence of eagles in South Africa, with a particular focus on the conservation threats they face in the country. The second section (paragraphs 3 and 4) provides an overview of the status of eagles in South African law. In the third section (paragraphs 5-8), an attempt is made to critically evaluate the scope and effectiveness of South African environmental law in respect of eagle conservation, and to make a number of recommendations.

2 Eagles and conservation threats in South Africa

2.1 The occurrence of eagles in South Africa

Sixteen species of eagle occur in the Republic of South Africa.3 Thirteen of these species are known to breed in the territory,4 while the remaining three species visit South Africa on migration and are not known to breed in South Africa.5 Some species are thought to be nomadic, and can range widely in Africa, when not tied to a breeding territory.6 Compared to many other nations, South Africa is exceptionally rich in eagle species.7

The word "eagle" is applied to a wide variety of large diurnal raptors, or birds of prey. These birds are classified into a number of fairly distinct groups, such as fish eagles, snake eagles, and typical or booted eagles. These groups are not necessarily closely related, and for this reason the word "eagle" is not a recognised scientific term in ornithology.8 Nevertheless, eagles have several common characteristics, the most notable of which include their large size and carnivorous diet. They furthermore share the predatory habit of actively hunting live prey, although most eagles will also eat carrion.9

In addition to the sixteen eagle species, a further fifty-one species of diurnal birds of prey, or raptors, occur in South Africa, bringing the total number of diurnal raptor species to sixty-seven.10 A detailed survey and evaluation of the legal status of all these species were deemed a too ambitious undertaking for this exploratory study. It is nevertheless hoped that this contribution, although restricted to the legal status of the sixteen eagle species, will be of assistance to anyone with an interest in the conservation of birds of prey. Arguments, conclusions and recommendations that are offered here may apply equally to other species of birds of prey.

2.2 Conservation threats

The conservation threats to eagles in South Africa may be classified into two broad categories: (1) direct and (2) indirect.11

2.2.1 Direct threats

2.2.1.1 Intentional killing

Direct, intentional killing of eagles may be performed for a variety of purposes, but is perhaps most often associated with small-stock farming, where the eagles are perceived as a threat to lambs. Such killing is known to have impacted severely on some eagle species.12 The Martial Eagle is the best example. It has the widest distribution of all the large eagle species occurring in South Africa, and yet in many areas it is one of the rarest species. In large conservation areas, such as the Kruger National Park and the Kgalagadi Transfrontier Park, healthy Martial Eagle populations occur at much higher densities than on farmland.13 The Martial Eagle is Africa's largest eagle and is capable of killing the offspring of small livestock. Conflict with small-stock farmers, whether based on hard evidence or on suspicion and prejudice,14 is almost inevitable, and direct human persecution is probably the main cause of the rarity of the Martial Eagle over much of South Africa today.15 In certain parts of South Africa the Verreaux's Eagle and the Crowned Eagle are also subject to direct persecution by small stock farmers.16 The African Hawk-Eagle and the Ayres's Hawk-Eagle frequently hunt birds and may be shot by poultry farmers and pigeon fanciers.17

Apart from the protection of livestock against a perceived threat of predation, the intentional killing of raptors may also be motivated by the use of raptor parts in traditional medicine. Various vulture species are known to be targeted for this practice.18 The most frequently employed technique is to put out a poisoned carcass to attract and kill large numbers of vultures. This technique is very effective, and birds breeding inside conservation areas but foraging over wide areas for food can be targeted by placing poisoned bait close to the borders of such protected areas. At the moment it is unknown if eagle species are intentionally targeted for the traditional medicine trade, but the possibility needs to be reckoned with.19

2.2.1.2 Trade in eagles and their eggs

Trade in eagles and their eggs can be an important threat to eagle populations. Some eagle species are highly valued by falconers and collectors, and this gives rise to a black market trade in these eagles and in live eggs that are hatched in incubators. Not much data is available about such activities in South Africa, but a dramatic instance of such trade in the eggs of Verreaux's Eagles and other raptors occurred in neighbouring Zimbabwe.20 In that case, the local perpetrators were members of a group of volunteers monitoring and studying an exceptional population of Verreaux's Eagles in the Matobo Hills. South African eagles cannot be assumed to be immune from similar threats.

2.2.2 Indirect threats

2.2.2.1 Non-targeted poisoning

Various human activities that are not aimed at harming eagles can nevertheless pose conservation risks to eagle populations. A significant example of this is poisoning in rural areas. Poisoned bait is put out for problem animals such as black-backed jackal21 and caracal,22 usually without any desire to harm eagles, but eagle mortalities occur when eagles find the bait first. Poisoned bait aimed at collecting vulture carcasses for the traditional medicine market can also kill eagles in this way. Two eagle species that have suffered dramatic reductions in numbers and distribution as a result of such poisoning are the Bateleur and the Tawny Eagle.23 Both species rely heavily on carrion as a source of food. In large protected areas like the Kruger National Park and the Kgalagadi Transfrontier Park, these two species are usually among the most numerous of the resident eagle species. However, although they occurred widely in South Africa in historical times, both species are now extinct in much of South Africa outside formally protected areas, and unintentional poisoning is in all likelihood the major cause of this.

A second form of unintentional poisoning is related to the use of pesticides and other toxic chemicals. Internationally, the most serious impact of pesticides on raptor populations has involved so-called organochlorines, of which DDT is the most notorious. These substances dissolve in fat and therefore accumulate in the bodies of animals. Animals at the top of food chains, like birds of prey, eat animals with such accumulations in their body fats, and end up having even higher concentrations of these compounds in their bodies. In many instances, the effect is not lethal to the birds of prey, but leads to egg-shell thinning, which in turn causes eggs to break, resulting in reproductive failure. In the northern hemisphere, populations of raptors such as the Bald Eagle24 and Peregrine Falcon25 crashed, and this led to restrictions on the use of these compounds in many countries.26 In South Africa DDT is still used at times to combat malaria, and it therefore poses a potential threat to the reproduction of eagles and other birds of prey.

Incidents are also on record where poisons have been sprayed onto flocks of Redbilled Quelea,27 an avian crop pest, whereupon birds of prey, including eagles, catch and eat the poisoned Queleas with lethal consequences to the birds of prey.28

2.2.2.2 Habitat loss

Loss of habitat is one of the most important factors causing the extinction of species worldwide.29 Among the South African eagles, habitat destruction poses the most immediate risk to species occurring in habitats that cover small land surface areas and that are exposed to degradation by human activities. The best example of this is the Southern Banded Snake Eagle. Its South African distribution is restricted to a narrow belt of sub-tropical bush fringing the far northern coast of KwaZulu-Natal.30 If this localized habitat it destroyed, this will probably result in the local extinction of the Southern Banded Snake Eagle. Habitat destruction in South Africa is usually the result of development for agriculture, housing, mining and similar land-use forms, or in subsistence communities, the clearing of bush to collect firewood, to establish small croplands, and for other purposes. Related to habitat loss is the global threat of climate change, the impacts of which could, for instance, include dramatic changes in the habitat and prey base of many eagles.

2.2.2.3 Dangerous structures

Several structures erected by people on the landscape are potentially dangerous to eagles. Thus eagles may be killed by being electrocuted on power lines, colliding with power lines in flight, and drowning in steep-sided farm dams.31 The imminent introduction of wind farms in South Africa also has the potential to kill a variety of birds, including eagles.32

2.2.2.4 Disturbance

Unintentional disturbance at nests may impact negatively on the distribution of eagles and on their breeding success.33 Rock-climbing and other mountaineering activities may contribute to the nesting failure of pairs of Verreaux's Eagle.34

3 Legislation impacting on the legal status of eagles in South Africa

An overview of laws that affect or may affect the conservation status of eagles in South Africa is now presented.

South Africa is a constitutional democracy with a separation between the powers of the executive, the legislature and the judiciary. The national and provincial tiers of government have a concurrent competence to make laws on nature conservation and some other environmental matters.35 The most important South African laws addressing conservation threats against eagles are the National Environmental Management: Biodiversity Act 10 of 2004 (NEMBA), read with the Threatened or Protected Species Regulations, February 2007 (TOPS regulations), the National Environmental Management: Protected Areas Act 57 of 2003 (NEMPA), and a multitude of provincial nature conservation ordinances or biodiversity legislation. In the overview that follows, these laws will be given the most attention, and when a practical legal problem concerning the conservation of a South African eagle needs to be solved, these laws should be consulted first. However, these laws do not exist in a vacuum, and a number of other South African laws and international and regional legal instruments will also be considered, albeit more briefly.

3.1 International legal instruments

South Africa is a party to several international legal instruments that may influence the conservation status of eagles.36 The Minister of Water and Environmental Affairs37 must report annually to the State President on the international environmental instruments for which he or she is responsible, and the report may include details of progress with their implementation, and of legislative measures that have been taken and the envisaged time frames within which the relevant objectives will be achieved.38

3.1.1 The Convention on Wetlands of International Importance (1971) (the Ramsar Convention)

This convention39 is aimed at the wise use of wetlands. It makes provision for the declaration of wetlands of international importance, but signatory countries also undertake to promote the conservation and sustainable use of other wetlands. South Africa became a signatory country in 1975. The African Fish Eagle is an obvious beneficiary of the protection of wetlands.

3.1.2 The Convention Concerning the Protection of the World Cultural and Natural Heritage (1972) (the World Heritage Convention)

This convention40 is aimed at the cooperative conservation of sites of natural and cultural heritage. Signatory countries undertake to identify and cooperate in the conservation of World Heritage Sites that are of international cultural and natural significance.41 Eight World Heritage Sites have been proclaimed in South Africa,42 and all but one of them are known to have eagles as residents or visitors.

3.1.3 The Convention on International Trade in Endangered Species of Wild Fauna and Flora (1973) (CITES)

This is an international agreement43 with the aim of controlling and monitoring international trade in species threatened or potentially threatened by such trade. South Africa became a signatory country in 1975. All imports and exports of species listed in the CITES appendices must be authorised by way of a permit system. A CITES permit may be issued only if, inter alia: (a) export or import of the species will not be detrimental to the survival of the species in the wild; (b) the relevant specimen was not obtained in contravention of protective law of the relevant state; and (c) living specimens will be transported in a manner that will minimise the risk of injury, damage to health or cruel treatment. All sixteen species of eagle occurring in South Africa are listed in Appendix II; that is, they are deemed to be species that are not necessarily threatened with extinction, but that may become threatened in future unless international trade is strictly regulated. Permits to import or export Appendix II species may be issued only if the relevant specimens were lawfully obtained and their trade will not be detrimental to the survival of the species in the wild.

3.1.4 The Convention on the Conservation of Migratory Species of Wild Animals (1979) (the Bonn Convention or the CMS) and the Memorandum of Understanding on the Conservation of Migratory Birds of Prey in Africa and Eurasia (the Raptors MoU)

This convention is aimed at strengthening the conservation of wild animals that migrate across state borders, mainly by means of the development of cooperative agreements between governments.44 In terms of Appendix II, the species of the Accipitridae, the bird family to which eagles belong, are species that are vulnerable and that would benefit from international agreements for their conservation.45 South Africa acceded to the convention in 1991. Four eagle species are known to visit South Africa regularly as migrants,46 and one species is presumed to do so.47 These species, and potentially some others too,48 can benefit from this convention. However, the main strategy of the convention is the development of cooperative agreements between governments, and because the convention has not yet been signed by all the countries bordering on South Africa, the effectiveness of the convention is undermined in the southern part of Africa.49

The convention also makes provision for the drafting of specific memoranda of understanding, and the Memorandum of Understanding on the Conservation of Migratory Birds of Prey in Africa and Eurasia (the Raptors MoU) came into effect in 2008.50 The Raptors MoU is not a legally binding agreement,51 but the signatory states undertake to aim to take coordinated measures to achieve and maintain the favourable conservation status of birds of prey throughout their range and to reverse their decline,52inter alia by striving to adopt, implement and enforce legal, regulatory and administrative measures that would be appropriate to conserve birds of prey and their habitat.53 Annex 3 contains an Action Plan for the conservation of migratory birds of prey in Africa and Eurasia. One of the activities that must be performed by signatory states in terms of the Action Plan is to improve the legal protection of birds of prey.54 This requires signatory states to review their relevant legislation and take steps where possible to make sure that the legislation protects all birds of prey from all forms of deliberate killing, deliberate disturbance at nest sites and communal roost sites, egg-collection, and taking from the wild, unless such activities are authorised by a competent body and are sustainable and not detrimental to the conservation status of the species concerned. Steps must also be taken where possible to ban the use of exposed poison baits for predator control and chemicals that have been shown to cause significant avian mortalities. In addition, steps must be taken to ensure that the legislation requires all new power lines to be designed to avoid the electrocution of birds of prey. The enforcement of legal protection for birds of prey must be strengthened by appropriate penalties, the training of law enforcement authorities, and raising public awareness to improve surveillance and the reporting of illegal activities. South Africa signed the Raptors MoU in 2010. None of the Southern African states sharing common borders with South Africa has yet signed the MoU.

3.1.5 Convention on Biological Diversity (1992)

This convention55 is aimed at the conservation of biodiversity, the sustainable use of its components, and a fair and equitable sharing of the benefits of the use of genetic resources. It provides that each contracting state party must develop national strategies, plans or programmes for the conservation and sustainable use of biological diversity, or adapt existing strategies, plans or programmes. Furthermore, the contracting parties must, as far as possible and as appropriate, integrate the conservation and sustainable use of biological diversity into relevant sectoral or cross-sectoral plans, programmes and policies.56 The Convention requires parties to establish, as far as possible and appropriate, a system of protected areas where special measures will apply for the conservation of biological diversity.57 Furthermore, parties undertake to regulate or manage biological resources, whether within or outside protected areas, to ensure their conservation and sustainable use.58 South Africa ratified this convention in 1995. It should be self-evident that eagle conservation is promoted by the aims of the convention. Enabling national laws that give effect to the convention in South Africa are the National Environmental Management: Biodiversity Act 10 of 200459 and the National Environmental Management: Protected Areas Act 57 of 2003.60

This convention is a global treaty to protect human health and the environment from chemicals that remain intact in the environment for long periods, become widely distributed geographically, and accumulate in the body fats of people and animals.61 These substances are collectively known as persistent organic pollutants and refer mainly to organochlorines such as DDT. South Africa ratified the convention in 2002.62 Governments in developing countries, including South Africa, may still use DDT to control malaria-carrying mosquitoes, subject to conditions imposed by the Stockholm Convention63 In view of the threat of poisons to eagle populations, this convention is clearly of importance to the conservation of eagles.

3.2 Regional African and sub-regional legal instruments

A number of regional (African) and sub-regional (Southern African) legal instruments can also influence the conservation status of South African eagles.64

The Revised African Convention on Nature and Natural Resources65 contains several interesting provisions dealing with the conservation of biodiversity.66 Amongst others, signatory state parties undertake to ensure the conservation of species and their habitats within the framework of land-use planning and of sustainable development. The management of species and their habitats must be based on the results of continued scientific research.67 The parties must compile inventories of species of fauna and flora and prepare maps of their distribution and abundance, and conduct regular reviews to facilitate the monitoring of the status of such species and their habitats in order to identify species that are threatened or may become so, and to provide them with appropriate protection.68 The Convention also contains comprehensive provisions about the creation of conservation areas.69 The signatory parties must promote environmental education, training and awareness creation at all levels to enhance the appreciation of the citizenry of their close dependence on natural resources, and the reasons and rules for ensuring that the use of these resources is sustainable.70 It should be self-evident that many of the provisions of the convention would be highly beneficial to eagle conservation, but although the convention has been signed by several African states, including South Africa in April 2012, it has not yet been ratified, and is currently not in force.71

3.2.2 Agreements to create Transfrontier Conservation Areas

Treaties between South Africa and some of its neighbouring states have given rise to Transfrontier Conservation Areas, also referred to as "Peace Parks", usually by an effective amalgamation of protected areas in the different states across their shared borders.72 The South African parts of such Transfrontier Conservation Areas must be designated as protected areas according to the relevant national legislation, in this instance the National Environmental Management: Protected Areas Act 57 of 2003 (NEMPA).73 The oldest of these Transfrontier Conservation Areas is the Kgalagadi Transfrontier Park,74 in which the Kalahari Gemsbok National Park of South Africa was united with protected areas in Botswana to create a massive conservation area of 37 256 square kilometres. Another large transfrontier park is the Great Limpopo Transfrontier Park,75 straddling the borders of South Africa, Mozambique and Zimbabwe to create a conservation area of 35 000 square kilometers, with the South African Kruger National Park being one of its main constituent elements. Others are Ai/Ais/ Richtersveld and Maloti-Drakensberg.76 Transfrontier Conservation Areas such as the Kgalagadi and Great Limpopo Transfrontier Parks are of immense importance to eagle conservation.

3.3 National legislation

3.3.1 Constitution of the Republic of South Africa, 1996

The Constitution of the Republic of South Africa provides in the Bill of Rights that:77

Everyone has the right -

(a) to an environment that is not harmful to their health or well-being; and

(b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that -

(i) prevent pollution and ecological degradation;

(ii) promote conservation; and

(iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

These provisions lay a people-centred foundation upon which South African environmental law is constructed.78 The Constitution is the ultimate source of all environmental rights in South Africa.79 In addition, commentators have pointed out that a constitutionally entrenched environmental right can provide a "safety net" when existing laws or policies are inadequate to address given environmental problems, and can inhibit economic programmes that are detrimental to the environment, and, by providing procedural environmental rights, should promote greater public participation in the interpreting and enforcing of substantive environmental rights.80

The Constitution provides that the environment and nature conservation are areas of concurrent national and provincial legislative competence.81 National parks constitute an exception insofar as the provinces have no legislative competence in respect of them. A conflict between national and provincial legislation must be resolved in terms of section 146. This section provides that national legislation that applies uniformly with regard to the country as a whole prevails over provincial legislation if (a) the national legislation deals with a matter that cannot be regulated effectively by provincial legislation individually enacted by the respective provinces; or (b) the national legislation deals with a matter that, to be dealt with effectively, requires uniformity across the nation, and the national legislation provides that uniformity by establishing norms and standards, frameworks or national policies; or (c) the national legislation is necessary inter alia for the protection of the environment.82

3.3.2 The National Environmental Management Act 107 of 1998 (NEMA)

The National Environmental Management Act 107 of 1998 (NEMA)83 creates the legislative framework for environmental protection in South Africa, and is aimed at giving effect to the environmental right in the Constitution.84 It sets out a number of guiding principles that apply to the actions of all organs of state that may significantly affect the environment.85 Sustainable development (socially, environmentally and economically) is one of the key principles,86 and internationally accepted principles of environmental management, such as the precautionary principle87 and the polluter pays principle,88 are also incorporated.89

NEMA furthermore makes provision for cooperative environmental governance facilitated by the submission and compliance with environmental implementation and management plans.90 State departments which exercise functions that may affect the environment91 and the provinces must prepare environmental implementation plans.92 State departments exercising functions that involve the management of the environment93 must prepare environmental management plans.94 NEMA furthermore provides that the Minister of Water and Environmental Affairs, provincial governments and local authorities may enter into Environmental Management Cooperation Agreements with any person or community to promote compliance with the principles of environmental management.95 Provisions of this nature should promote the conservation of biodiversity in general, and hence also of eagles and other birds of prey, as well as their prey species.

NEMA also provides that a wide variety of listed developmental activities,96 which may significantly affect the environment, may be performed only after an environmental impact assessment has been done and authorization has been obtained from the relevant authority.97 Many of these listed activities can potentially have negative impacts on eagle populations in a variety of ways. The clearance of natural vegetation, for instance, can lead to a loss of habitat and may depress prey populations, while erecting structures needed for generating and distributing energy, communication, and so forth can cause mortalities by collision or electrocution.

NEMA also provides that the Minister may make a recommendation to the Cabinet and Parliament in respect of accession to or ratification of international environmental instruments to which South Africa is not yet bound.98 The Minister must report to Parliament once a year on the international environmental instruments for which he or she is responsible99 and this report may refer to progress made with their implementation.100 As noted above, several international environmental instruments to which South Africa is a party promote the conservation of eagles and other birds of prey.

To aid the enforcement of environmental law,101 NEMA makes provision for the appointment of Environmental Management Inspectors and gives them wide powers inter alia to conduct inspections and searches, to seize items and to issue compliance notices.102 These inspectors are popularly known as the Green Scorpions and have had success with the investigation of environmental crimes.103 Under the heading "Judicial matters", the Act addresses such matters as legal standing to enforce environmental laws, private prosecutions, criminal proceedings, and offences.104

3.3.3 The National Environmental Management: Protected Areas Act 57 of 2003 (NEMPA) and other Acts dealing with protected areas

The National Environmental Management: Protected Areas Act 57 of 2003 (NEMPA)105 makes provision for the declaration and management of protected areas.106 The Act is aimed at consolidating and rationalising all the laws dealing with protected areas in South Africa.107 NEMPA has superseded, amongst others, the National Parks Act 57 of 1976, in terms of which most of the South African national parks were proclaimed. It has also superseded similar pieces of legislation in the former independent or semi-independent States and Homelands. South Africa has an impressive network of national parks and other protected areas known as special nature reserves, nature reserves and protected environments, world heritage sites, marine protected areas, protected forests, and mountain catchment areas, among other titles.108 The purposes for which the protected areas have been declared include to conserve biodiversity,109 to protect areas representative of all ecosystems, habitats and species naturally occurring in South Africa,110 and to protect South Africa's threatened or rare species.111 Because important biodiversity often occurs outside of the network of formally protected areas, the Act also makes provision for the declaration of protected environments that may be situated outside formally protected areas but are nevertheless subject to special conservation measures.112

Other Acts in terms of which protected areas may be proclaimed include the World Heritage Convention Act 49 of 1999; Mountain Catchment Areas Act 63 of 1970 and National Forests Act 84 of 1998. At a provincial level, many nature conservation laws and ordinances also make provision for the creation of protected areas.113

The protected areas of South Africa are extremely important for the conservation of eagles, as will be shown in more detail below.114

3.3.4 The National Environmental Management: Biodiversity Act 10 of 2004 (NEMBA) and the Threatened or Protected Species Regulations, February 2007 (TOPS Regulations)

The most prominent statute containing provisions directly aimed at the conservation of eagles is the National Environmental Management: Biodiversity Act 10 of 2004, read with the Threatened or Protected Species Regulations, February 2007 (TOPS Regulations).115 Chapter 1 sets out the objectives of the Act, and they are aligned with the objectives of the Convention on Biological Diversity, which are the conservation of biodiversity, the sustainable use of its components, and the fair and equitable sharing of the benefits of the use of genetic resources.116 The Act also gives effect to CITES, the Ramsar Convention, and the Bonn Convention on Migratory Species of Wild Animals117 The State is endowed with the trusteeship of biodiversity and has the responsibility to manage, conserve and sustain the biodiversity of South Africa.118 Chapter 2 establishes the South African National Biodiversity Institute (SANBI), and tasks it with monitoring and reporting on biodiversity matters.119

Chapter 3 makes provision for coordinated biodiversity planning, monitoring and research.120 The Minister of Water and Environmental Affairs must prepare a national biodiversity framework to provide for coordinated biodiversity management by organs of state and non-governmental bodies and to identify conservation priorities.121 The Minister may furthermore draw up bioregional plans for effective biodiversity management and monitoring on a regional basis.122 Biodiversity management plans for species may be drawn up by any person, organisation or state organ, and submitted for approval by the Minister, for the purpose of ensuring the long-term survival of an ecosystem or a species.123 Such a biodiversity management plan may be drafted for a listed, threatened or protected species,124 but also for a species which is not listed but nevertheless warrants special conservation attention.125 These provisions have great potential for the development of management plans for eagle species, irrespective of whether they are listed, threatened or protected species. The Act furthermore specifically authorises the drafting of a biodiversity management plan for a migratory species to give effect to South Africa's obligations in terms of an international agreement.126 This provision clearly has the potential to be applied in respect of the species that are sought to be protected by the Raptors MoU. The Minister must identify a suitable person, organisation or organ of state that is willing to be responsible for the implementation of the biodiversity management plan,127 and the Minister may enter into a biodiversity management agreement with that identified party to facilitate implementation.128 The Minister must designate monitoring mechanisms and set indicators to determine the conservation status of various components of South Africa's biodiversity and any negative and positive trends affecting the conservation status of the various components.129

The Minister must furthermore promote research on biodiversity conservation. Such research may include the collection and analysis of information about the conservation status of the various components of biodiversity and negative and positive trends in respect of that status, processes or activities likely to impact adversely on biodiversity conservation, the assessment of biodiversity conservation strategies and techniques, the determination of biodiversity conservation needs and priorities, and the sustainable use, protection and conservation of indigenous biological resources.130 Research of the kind envisaged could be of immense value for eagle conservation.

Chapter 4 of NEMBA deals with threatened or protected ecosystems and species. The stated purpose of the chapter is (a) to provide for the protection of ecosystems that are threatened or in need of protection; (b) to provide for the protection of species that are threatened or in need of protection to ensure their survival in the wild; (c) to give effect to international agreements regulating trade in specimens of endangered species;131 and (d) to ensure the sustainable use of biodiversity.132 In respect of species, the chapter authorizes the Minister of Water and Environmental Affairs to publish a list of Critically Endangered, Endangered, Vulnerable or Protected Species.133 These categories of species are defined in the Act. A Critically Endangered Species is any indigenous species facing an extremely high risk of extinction in the wild in the immediate future.134 An Endangered Species is any indigenous species facing a high risk of extinction in the wild in the near future, although it is not a Critically Endangered Species.135 A Vulnerable Species is any indigenous species facing an extremely high risk of extinction in the wild in the medium-term future, although it is not a Critically Endangered or Endangered Species.136 A Protected Species is any species that has such a high conservation value or national importance that it requires national protection, although it is not listed in one of the aforesaid three categories.137 If lists of these categories of species are published, they must be reviewed by the Minister at least every five years.138 In tandem with the Threatened or Protected Species Regulations,139Lists of Critically Endangered, Endangered, Vulnerable and Protected Species (hereafter the NEMBA lists) were indeed published in 2007.140 In these lists, four eagle species are listed as Vulnerable. That is, they are deemed to face a high risk of extinction in the wild in the medium-term future. These species are the Tawny Eagle, Southern Banded Snake Eagle, Martial Eagle and the Bateleur.141 No eagle species are listed as Critically Endangered,142 Endangered143 or Protected.144 A new Threatened or Protected Species list was published for comment in April 2013.145 According to the proposed new list, the following eagle species are still classified as Vulnerable: Bateleur, Martial Eagle, and Tawny Eagle. The Southern Banded Snake Eagle is no longer listed, and no other eagle species have been added.

In respect of any listed, threatened or protected species, the carrying out of a "restricted activity" without a permit is prohibited.146 The restricted activities are defined to include hunting, capturing or killing a living specimen by any means, method or device whatsoever; injuring a living specimen with intent to hunt, catch, capture or kill; importing or exporting; having in possession; breeding; translocating; and selling or trading any specimen.147 "Specimen" is defined to include an egg.148

The Minister of Water and Environmental Affairs may, in addition, prohibit the carrying out of any activity that may impact negatively on the survival of a listed, threatened or protected species.149

Chapter 9 deals with offences and penalties. The carrying out of a "restricted activity" without a permit in respect of a listed threatened or protected species is an offence,150 and a person convicted thereof may be liable to a fine, imprisonment for a term of five years or less, or both.151 The fine may not exceed an amount prescribed by the Adjustment of Fines Act152 or an amount equal to three times the commercial value of the specimen in respect of which the offence was committed, whichever is the greater.153 Under certain circumstances these penalties may be strengthened by recourse to NEMA. The offender may, for instance, be ordered to pay, in addition to the fine, compensation for damage caused by the offence; or to pay, in addition to the normal fine, a fine equivalent to the monetary advantage the offender would have gained from the offence; or to perform remedial actions.154

The Threatened or Protected Species Regulations, February 2007 (the TOPS Reguaations) have been published to give effect to Chapter 4 of NEMBA.155 The Regulations contain detailed provisions dealing with such topics as permits;156 captive breeding and related topics;157 hunting organisations158 and the Scientific Authority that effectively functions as a local secretariat of CITES.159

The TOPS Regulations also contain provisions dealing with damage-causing animals.160 A "damage causing animal" is defined as an individual of a listed, threatened or protected species in respect of which there is substantial proof that, when interacting with human activities, it causes losses to stock or to other wild specimens; causes excessive damage to cultivated trees, crops, natural flora or other property; presents a threat to human life; or is present in such numbers that agricultural grazing is materially depleted. The provincial department responsible for the conservation of biodiversity in the relevant province must determine whether a listed, threatened or protected species can be deemed to be a damage-causing animal. If a damage-causing animal originates from a protected area, control options such as capture and relocation must be considered and killing left as a last resort. Certain permit holders161 may hunt a damage-causing animal by such means as poison which has in terms of applicable legislation been registered for this purpose; bait and traps, excluding gin traps, under certain specified conditions; and a firearm, as specified on the permit.162

The provisions in respect of damage-causing animals are relevant to the conservation status of eagles in two different ways. First, an eagle may itself qualify as a damage-causing animal and be killed in terms of these provisions. Second, an eagle may be the unintended victim of measures aimed at killing another animal, such as a jackal or a caracal, in terms of these provisions. Particularly relevant in this regard is the use of poisoned bait.

3.3.5 Legislation regulating the use of poisons

The most important national legislation controlling the use of pesticides is the Fertilizers, Farm Feeds, Agricultural Remedies and Stock Remedies Act 36 of 1947. It regulates, among other things, the trade in, use of and disposal of pesticides. A Pesticide Management Policy for South Africa was published in 2010, and envisages the replacement of the aforementioned Act with new legislation.163 The Foodstuffs, Cosmetics and Disinfectants Act 54 of 1972 is aimed at preventing dangerous levels of pesticides in food, and the Hazardous Substances Act 15 of 1973 and the Occupational Health and Safety Act 85 of 1993 contain provisions relating to pesticides in the interests of public health and health and safety in the workplace respectively. These Acts do not refer to the conservation status of eagles, but establish safety standards for dealing with toxic substances. If adhered to, these standards will benefit the environment and biodiversity.164

3.3.6 The Animals Protection Act 71 of 1962

This Act contains provisions aimed at preventing cruelty to animals, including wild animals (and therefore also eagles) held in captivity.165

3.4 Provincial legislation

Prior to the promulgation of the National Environmental Management: Biodiversity Act, the direct legal protection of terrestrial species of fauna and flora was mainly in the domain of provincial legislation. The National Environmental Management: Biodiversity Act did not repeal the provincial legislation. To obtain a comprehensive picture of the protection of eagle species within the borders of South Africa, the various pieces of provincial legislation must therefore also be consulted.166 If a section of NEMBA conflicts with a provision contained in provincial legislation, the conflict must be resolved in terms of section 146 of the Constitution.167 As seen,168 the section provides that national legislation, which applies uniformly with regard to the country as a whole, prevails over provincial legislation if (a) the national legislation deals with a matter that cannot be regulated effectively by provincial legislation individually enacted by the respective provinces; or (b) the national legislation deals with a matter that, to be dealt with effectively, requires uniformity across the nation, and the national legislation provides that uniformity by establishing norms and standards, frameworks or national policies; or (c) the national legislation is necessary inter alia for the protection of the environment.169 Applied to NEMBA and the provincial legislation, this would probably mean that NEMBA would prevail in most instances. This would also imply that the provincial legislation cannot give any species a lower conservation status than that with which it is endowed by NEMBA, but the provincial legislation can give a species a higher conservation status within the borders of the relevant province than that enjoyed by the relevant species nationally.170

In the provincial legislation, the dominant trend is to classify all species of eagle as Protected Wild Animals,171 or Protected Game.172 Hunting of such species without a permit is illegal.173 In some provincial laws "hunting" is defined to include egg collecting or destruction, while other laws define a Protected Animal or Game to include an egg of such a species. Accordingly, collecting or destroying an egg of these species is also illegal in the absence of a permit.174 A number of other acts are illegal in respect of Wild Animals or Game, inclusive of species defined as Protected, inter alia: catching;175 poisoning;176 selling;177 purchasing;178 importing;179 exporting180 and various related activities.181

Exceptions to this general trend in provincial legislation exist, insofar as the Bateleur and Martial Eagle are classified as Specially Protected Wild Animals in Limpopo;182 and the Bateleur as a Specially Protected Bird in KwaZulu-Natal.183 This is probably immaterial in view of the heightened status that these two species, plus the Tawny Eagle and Southern Banded Snake Eagle, enjoy in terms of NEMBA and the NEMBA lists. The national legislation will override the provincial legislation in respect of these four species. The highest level of protection is bestowed on eagles by the Nature Conservation Act (Ciskei).184 In terms of this Act, the Martial, Crowned, Verreaux's (Black), and African Fish Eagle are Specially Protected Wild Animals,185 and all the other eagle species are Protected Wild Animals.186 The difference between the conservation of Specially Protected Wild Animals and Protected Wild Animals under the Ciskei Act relates mainly to further restrictions that are placed on the processing of carcasses or parts thereof in respect of Specially Protected Wild Animals.187

Furthermore, in KwaZulu-Natal eagle species other than the Bateleur are not classified as Specially Protected Birds, and fall into the category of Wild Birds, but without a permit it is nevertheless illegal, among other things, to kill or capture Wild Birds,188 or to buy or sell them,189 and the nests and eggs of the breeding species are also protected from removal or destruction190 and purchase or sale.191 A significant difference in this regard between the Bateleur, as Specially Protected Bird, and the other eagle species, as Wild Birds, relates to the authority that may issue a permit. In the case of Wild Birds an application for a permit must be made to the Secretary of the KwaZulu-Natal Nature Conservation Board and the permit can be issued by an officer of the Board,192 whereas a permit allowing the killing or capture of a Specially Protected Bird can be issued only after prior approval of the Premier of the province.193

In the provincial laws important exceptions to the prohibition on hunting are made in respect of owners of land. This can take the form that the owner of land (and certain persons associated with the owner, such as relatives, employees and other persons authorised by him or her) may hunt protected species without a permit,194 or it may be possible for such person to obtain permits to hunt such species while other people may not obtain such permits.195 In some provincial laws this kind of exception pertains to Ordinary Game only, and to hunt protected species a permit remains a prerequisite.196

The provincial legislation typically also makes provision for the creation of protected areas such as provincial nature reserves.197

4 Locus standi

The provisions dealing with locus standi in environmental law matters in South Africa are now exceptionally inclusive. NEMA provides that any person or group of persons may seek appropriate relief for a breach or threatening breach of any provision of NEMA or any other statutory provision concerned with the protection of the environment or the use of natural resources, in own interest or, inter alia, in the interest of a group or class of persons whose interests are affected, in the public interest or in the interest of protecting the environment.198 The Constitution also contains an inclusive locus standi provision in respect of an infringement or threatened infringement of any right in the Bill of Rights.199 NEMA furthermore provides that a court may decide not to award costs against a person or group of persons who have unsuccessfully sought relief in respect of any breach or threatening breach of NEMA or a specific environmental management act or any statutory provision concerned with the protection of the environment or the use of natural resources, if the court is of the opinion that the person or group of persons acted reasonably out of a concern for the public interest or an interest in protecting the environment and had made due efforts to use other means reasonably available for obtaining the relief.200 The effect of these provisions is that an organisation or individual who is concerned about violations of laws pertaining to the conservation status of eagles and who wishes to seek a remedy for this in court should not be denied legal standing and should not be unduly dissuaded from litigation by a fear of a cost order in case of being unsuccessful in court.201

5 Evaluation

Kemp clearly delineates three basic approaches to bird conservation.202 First, the habitat of a species can be conserved, and this will also benefit other species in the area. Management of the habitat may be necessary to maintain it in the best condition, and may thus form part of this first approach. Second, management practices that are aimed directly at a particular species may be applied in the habitat. Examples could be to supplement food or nest sites. Third, a threatened species may be taken into captivity and an attempt be made to bolster its numbers by captive breeding. Kemp comments that these three options are presented in order of increasing focus on individuals rather than entire populations, and also in increasing order of cost, and in a decreasing order of preference. Kemp's analysis may be applied to provide a framework for evaluating the conservation status of eagles in South African law, thus inquiring whether the law sufficiently facilitates and regulates (1) the protection of the habitat of the various eagle species; (2) management targeted at species; and (3) captive breeding.

5.1 Protection of habitat

There can be no doubt that the large protected areas in South Africa are of immense importance for eagle conservation.203 The best example of this is the Kruger National Park. The park is very large at nearly two million hectares, and forms the core of a much larger effective conservation area in South Africa, because several private game reserves and game farms border on the western boundary of the Park. With the exception of the Southern Banded Snake Eagle, all the eagle species occurring in South Africa have been recorded in the Park.204 The park houses important breeding populations of six eagle species,205 and four other species have also been known to breed in the Park or in adjacent private nature reserves.206 In this regard, it is particularly important that three of the species that breed in significant numbers in the Park are species that are listed as Vulnerable in the NEMBA lists, namely the Bateleur, Tawny Eagle and Martial Eagle. The Kruger National Park is therefore of key importance for the conservation of these three species in South Africa. Moreover, because the Bateleur and Martial Eagle are listed as Near Threatened by the International Union for Conservation of Nature (IUCN),207 the Kruger National Park is a key site for the global conservation of these two species. The Park is also an important non-breeding destination of migrant species. The Lesser Spotted Eagle, in particular, is a regular visitor in the southern summer and occurs in significant, and sometimes spectacular, numbers.208 The conservation status of the Lesser Spotted Eagle is a subject of concern in parts of its breeding grounds in Europe, and on parts of its annual migratory route.209 The safe foraging fields of the Kruger National Park are an important component of its conservation in its non-breeding quarters. The numbers of visiting Steppe Eagle fluctuate even more, but large influxes have been recorded.210 The Kruger National Park is regarded by BirdLife International, the largest partnership of conservation organisations in the world,211 as an Important Bird Area (IBA).212 To qualify as an IBA an area must meet standardised criteria based on the occurrence of key bird species that are vulnerable to global extinction or whose populations are otherwise irreplaceable. Furthermore, an IBA should ideally be large enough to support self-sustaining populations of as many of the key species it has been identified for, or in the case of migrants, fulfill their requirements during their presence.213

Other conservation areas of special importance for eagle populations include the Kgalagadi Transfrontier Park, and a clustre of reserves in northern KwaZulu-Natal.214

These areas support important breeding populations of Bateleur, Tawny Eagle and Martial Eagle,215 as well as a number of other species.216 The iSimangaliso Wetland Park centred on Lake St Lucia is of key importance for the Southern Banded Snake Eagle,217 the fourth South African eagle species listed as Vulnerable in the NEMBA lists and the third such species listed as Near Threatened by the lUCN. The species also occurs in other protected areas in Northern KwaZulu-Natal.218 All these areas have been identified as IBA's by BirdLife International.219

Many South African mountain ranges are protected or partially protected in national parks, nature reserves, world heritage sites, mountain catchment areas or forestry areas, especially in the Western Cape and Eastern Cape Provinces, but also elsewhere. These ranges and their foothills are important for the conservation of the Verreaux's Eagle and the South African breeding population of the Booted Eagle,220 and may also host small numbers of the Martial Eagle and, in some regions, the Crowned Eagle.221 Several protected and partially protected forested areas are important for the conservation of eagles, in particular the Crowned Eagle.222 Many of these partially protected areas have been identified as IBAs.223

Biosphere reserves are sites recognized in terms of a programme of the United Nations Organization for Education, Science and Culture (UNESCO)224 to promote sustainable development based on local community efforts combined with scientific input.225 Six such reserves have been established in South Africa,226 and some of them, such as the Waterberg Biosphere Reserve227 and the Kruger to Canyons Biosphere Reserve228 are important for eagle conservation. In South Africa, biosphere reserves are not proclaimed under a specific Act and hence have no legal status.229 Conservancies, another category of protected areas, are protected areas created by contract rather than under specific biodiversity laws,230 and also contribute to the network of protected areas that ensure the continued existence of a wide range of South African habitats, many of them suitable to support eagle populations.

While large protected areas are undoubtedly of immense importance for eagle conservation, the other side of the coin is that the majority of South African protected areas are too small to protect eagles adequately. The large territories required by breeding eagles, in combination with the powers of flight of eagles, imply that only the largest nature reserves and other protected areas can sustain viable eagle populations within their borders.231 A pair of eagles may have their nest in a reserve and yet hunt over farmland on an almost daily basis, where their predatory habits may bring them into conflict with the human occupants of the land.

In the former Transvaal Province, Tarboton and Allan concluded that no provincial reserve was large enough to protect a single breeding pair of Martial Eagles.232

There is even some doubt about whether the largest conservation areas, like the Kruger National Park, are large enough to support viable populations of large birds of prey such as the Martial Eagle.233 In respect of vultures, great pessimism exists in conservation circles about their conservation,234 even though the Kruger National Park houses significant populations of four species.235 These birds range over wide areas searching for carrion, and this means that while they may nest in the Park, they may frequently forage over neighbouring land where a single poisoned carcass can attract and kill a large number of them. In comparison, territory-holding Martial Eagles are unlikely to range so widely, and the Kruger National Park is sufficiently large for many pairs to have territories that are situated entirely within the Park, thus minimising the potential of those pairs to range outside the Park. However, pairs that have their territories on the periphery of the Park may forage in unprotected areas, where illegal shooting and other threats are a reality. Perhaps more significantly, after fledging from the nests, juvenile eagles usually disperse some distance away from their natal areas, and some immature birds may wander quite widely.236 The juvenile dispersal of Martial Eagles has not been studied comprehensively, and it is unknown where these birds go after they become independent of their parents. It is probable that many of them end up on farmland and get shot, perhaps because in their inexperience they attempt to hunt poultry or lambs. In general, it is a known trend that raptor mortalities are disproportionately high in young birds in the first year of their lives.237 If the wanderings of such young birds take them outside protected areas, their potential to meet with an early end becomes greater, and their potential to become mature breeding birds which can contribute to the continued existence of the species is accordingly diminished.

A decline in the numbers of juvenile birds will also result in a decline of the pool of unattached sexually mature birds. Such mature but unattached birds are of great importance for the continued existence of the species, because if a member of a territory-holding pair dies, the remaining bird would need to find a new mate from the ranks of unattached birds.238 If the pool of unattached birds is large, lost breeding birds may be replaced quickly and the overall rate of reproduction of the species may not be affected negatively. If the pool of unattached birds is small, territory-holding birds may find it difficult to replace lost mates, the rate of reproduction may slow down, and, especially if a species occurs naturally in such low densities as a Martial Eagle,239 the numbers of the population as a whole may start to decline. If the numbers of a declining population go lower than a certain critical threshold, it may become impossible to halt the decline of the species.240 Other eagle species, although they may occur in higher densities than Martial Eagles, may also be at risk in this way, and Bateleurs and Tawny Eagles that venture outside protected areas are particularly vulnerable to poisoning because carrion constitutes a large part of their diet.

Thus, one can conclude that the larger protected areas are of immense importance in eagle conservation in South Africa, but that additional conservation measures aimed at the protection of eagles outside of protected areas are also needed.241

5.2 Protection of species in their habitats

When evaluating whether or not the law adequately facilitates and regulates the species-targeted management of eagles in their habitats, a logical point of departure is to consider the known conservation threats faced by eagles in South Africa and to take note of the extent to which such threats are addressed by the law. As seen,242 these threats comprise intentional killing, trade in eagles and their eggs, non-targeted poisoning, dangerous structures and disturbance.

5.2.1 Intentional killing

If the relevant provisions of NEMBA243 and the applicable provincial legislation244 are considered together, the law protects all South African eagle species against intentional killing. Taken at face value, the position is satisfactory. However, it is not entirely beyond criticism, and a number of observations may be of value in this regard.

A first point of criticism pertains to the complexity of the environmental laws contributing to the conservation status of eagles, and for that matter, all species of birds of prey.245 As seen, many provincial laws have concurrent jurisdiction with NEMBA. While all eagle species are protected by the provincial laws, only four species are listed as Vulnerable and are therefore directly protected by NEMBA, read with the lists of Critically Endangered, Endangered, Vulnerable and Protected Species.246 The listing of the Bateleur, Tawny Eagle, Martial Eagle and Southern Banded Snake Eagle as Vulnerable appears to be well-considered. However, the IUCN recently reconsidered the status of the Crowned Eagle and changed it from Least Concern to Near Threatened. This is a reflection of the global rather than the South African status of the species, and in the light of this the Crowned Eagle should arguably be categorised as Protected, at the very least, in the NEMBA lists.

A Red Data Book is published for South African bird species, and this contains an assessment of the status of rarer bird species on a national level. The current Red Data Book247 was published in 2000 and is therefore outdated. BirdLife South Africa248 is in the process of completing a new Red Data List for the birds of South Africa, Lesotho and Swaziland. This project is informed by the Southern African Bird Atlas Project 2 (SABAP 2)249 and other data-gathering initiatives, and will provide the most up-to-date information on the conservation status of South African birds. At a conference of the Bird of Prey Programme of the Endangered Wildlife Trust, held in Phalaborwa in May 2013, Mr Martin Taylor of BirdLife South Africa gave delegates a preview of changes in the Red Data status of South African birds of prey. In respect of eagles, the Bateleur, Martial Eagle, Tawny Eagle and Southern Banded Snake Eagle will be listed as Endangered, while the Crowned Eagle and the Verreaux's Eagle will be listed as Vulnerable in the new Red Data list. Clearly, the NEMBA lists are out of step with the latest scientific information on the conservation status of these species.

In respect of the twelve eagle species that are not listed in the NEMBA lists, the great number of potentially applicable provincial laws complicates any inquiry into the legal status of those species. Furthermore, the protection offered by provincial laws is weaker than that offered by NEMBA, because the criminal penalties provided for in the provincial laws are typically lighter than those provided for in the national legislation.250 Also, the level of protection of a given species may differ from province to province. All these considerations raise the question of whether or not it would not have been better to have all eagle species, and indeed all bird of prey species, listed as Protected in terms of NEMBA.

Some indication of the thought processes behind the listing process in NEMBA can be gathered from an electronic newsletter issued by the erstwhile Department of Environmental Affairs and Tourism (DEAT) but still available for perusal on the website of the South African National Biodiversity Institute (SANBI).251 From this document it is evident that the Department proceeded from a quite conservative basis, seeking to generate species lists that were "lean and targeted". Clearly, the Department did not want to overburden the various authorities tasked with biodiversity conservation with lengthy lists. Furthermore, the newsletter emphasises that listing a species in one of these categories was only one of the tools created by NEMBA by which species could be conserved. Such a listing would protect a species against the listed restricted activities only, which did not in the view of the Department include habitat destruction. If a species could be successfully conserved by protecting its habitat, then the listing of threatened and protected ecosystems in terms of NEMBA,252 coupled with the identification of threatening processes253 and the linking of these with the NEMA Section 24 requirements would be the legal instrument of choice, in which case listing as a threatened or protected species was undesirable. It is likely that these commendable considerations informed the brevity of the list of threatened and protected eagles.

However, on closer analysis it is evident that these considerations were not applied consistently in respect of the South African eagle species. First, the main page of SANBI relating to NEMBA and the NEMBA lists explicitly state that no specific criteria were formulated by which listing was guided, and the Department was guided by expert opinions instead.254 This appears to indicate that the conservatism communicated in the electronic newsletter was not elevated to a binding principle. Second, an analysis of the position of the Southern Banded Snake Eagle is revealing. The main threat to that species is undoubtedly habitat destruction.255 Very few, if any, of the listed Restricted Activities have been documented as impacting on the survival of the species. If the reasoning in the newsletters had been followed, the habitat of this species should have been listed, and it would not have been a candidate for listing itself as a Threatened or Protected Species. The fact that it has been listed as Vulnerable is therefore an indication that other considerations could override the reasoning in the newsletter. In the case of the Southern Banded Snake Eagle, the rarity and limited distribution range of the species probably compelled the experts whose input shaped the lists to request its listing even though its conservation will probably stand or fall by the success of the conservation of its habitat.

In addition to the fact that the considerations articulated in the DEAT newsletter were not consistently applied, they may be subject to criticism in the case of eagles in particular and birds of prey in general. On the one hand, the idea of keeping the relevant biodiversity laws "lean" and simple to enforce can be supported. However, it is submitted that an approach that results in the listing of only four eagle species would not necessarily be the best way to go about this. It is a well-known fact in ornithological circles that many birds of prey are difficult to identify. If ornithologists experience identification problems with birds of prey, it is unreasonable to expect the authorities who must enforce biodiversity legislation and the citizens who are subjected to those laws to be immune from such problems. Looking specifically at the eagle species listed as Vulnerable, the Tawny Eagle is easily confused with other brown eagles such as the Steppe, Lesser Spotted and Wahlberg's Eagles;256 the Martial Eagle is known often to be confused with the Black-chested Snake Eagle;257 and the Bateleur can conceivably be confused with the Jackal Buzzard and, in immature plumage, with the Brown Snake Eagle.258 In view of the well-documented danger of raptors being misidentified, the simplest way of promoting "lean and manageable" biodiversity laws in respect of raptors is to list all species (except those already listed in one of the three threatened categories) as Protected.

In this regard it is worth noting that a precedent can be found in American law for amending legislation to include more species in the ambit of protection, based inter alia or the same type of grounds as those that have just been presented. The Bald Eagle Protection Act was enacted to protect a single eagle species, the Bald Eagle,259 the national symbol of the USA. The Act was later amended to protect another species also, the Golden Eagle,260 and thus became the Bald and Golden Eagle Protection Act.261 In addition to the realisation that extending protection to the Golden Eagle was a worthy goal in itself, a second reason for the amendment related to the danger that immature individuals of the two species could be misidentified, and hence immature Bald Eagles were vulnerable to be shot in the mistaken belief that they were immature Golden Eagles. The amendment of the Act therefore had the beneficial secondary effect of enhancing the protection of the Bald Eagle, and this was explicitly recognised in enacting the amendment.262

Other compelling reasons exist to have all eagles, and indeed all species of birds of prey occurring in South Africa listed in NEMBA. The fact that only four eagle species are listed in NEMBA arguably creates the impression that the conservation of only four eagle species is a goal of national importance, while the conservation of the remaining twelve species is a matter of provincial importance only. It is submitted that this sends the wrong signal to the people of South Africa. The law also has an educational function, serving to inform the citizens of the national goals a state sets for itself.263 The national biodiversity laws of the state should communicate the protection of all bird of prey species as a national goal. To give a special protection status only to species that have already reached a certain level of vulnerability is potentially an expensive form of conservation. Most birds of prey species have, in the absence of measures aimed at their protection, the potential to become endangered species.264 Factors contributing to this potential include the natural low densities and relatively small numbers in which raptors tend to occur; the recognised trend of most raptor species to be declining in numbers; the vulnerability of raptors as apex predators at the top of the food chain to all kinds of environmental maladies; the known history of both intentional persecution and indirect killing of raptors by human hands; and so forth.265 To bring a species that has become endangered back from the brink of extinction is a costly exercise.266 A more cost-effective strategy, and one more in line with the precautionary principle of environmental law would be to implement conservation measures in respect of low-density species while their populations are still relatively healthy, to prevent them from sliding into a state of vulnerability. It should also be remembered that conservation measures aimed at conservation of habitat are not necessarily sufficient in the case of birds of prey. In the case of plant species, habitat protection may conceivably be sufficient, if illegal collecting can be eliminated or minimised. Even in the case of large mammals habitat protection may be sufficient, if the mammals can effectively be contained by fences and be protected against the dangers of poaching. However, as noted above,267 in the case of creatures as mobile as eagles, habitat protection, while undoubtedly essential, may on its own not be sufficient to safeguard the continued existence of the species.

It should be borne in mind that NEMBA authorises the Minister, in addition to lists of Critically Endangered, Endangered, and Vulnerable species, to publish a list of Protected Species. The criterion for listing as Protected is that the species is of such high conservation value or national importance that it requires national protection, although it is not listed in one of the aforementioned categories.268 It is submitted that all eagle species not listed as critically endangered, endangered or vulnerable, and indeed all bird of prey species that are not so listed, comply very emphatically with this criterion, and should be listed as Protected. It is also noteworthy that, in enumerating factors that must be taken into consideration in sustainable development, NEMA states explicitly that there must be intergovernmental coordination and harmonisation of policies, legislation and actions relating to the environment.269 Clearly, this principle is not upheld by the current proliferation of biodiversity laws and would be much better served by a uniform and comprehensive listing of all raptor species in terms of the national biodiversity legislation.

In summary, the legal conservation status of eagle species in respect of intentional killing is basically satisfactory, but could be improved and rationalised.

5.2.2 Trade in eagles and their eggs

The relevant provisions of NEMBA, the TOPS Regulations, and the prohibition against trade contained in the provincial laws give effect to CITES and protect eagles and their eggs from illegal trade.

5.2.3 Non-targeted poisoning

The provisions in the TOPS Regulations dealing with the control of damage-causing animals and the provincial biodiversity laws contain safeguards that, if followed, should minimise the poisoning of non-targeted species such as eagles. A commentator has suggested that the Animals Protection Act270 could be used to prosecute people who poison birds of prey.271 However, the relevant provision is not aimed at persons using poisons for the "destruction of vermin", and because the majority of eagle poisonings are unintended consequences of poison being put out for "vermin" such as jackals or caracals, the practical usefulness of this Act in this context will probably be minimal.

5.2.4 Dangerous structures

There is no legislation targeted specifically at mitigating the mortalities of eagles and other birds caused by structures like power pylons, electric cables and wind-farm turbines. However, NEMA requires environment impact assessments to be done before new structures can be erected on a significant scale. If eagles and their needs were properly considered in such assessments, that might mitigate the dangers to them and aid in their conservation. In respect of the imminent introduction of wind-farms on a large scale in South Africa, the Endangered Wildlife Trust and Birdlife South Africa are already involved in environment impact assessment. Best practice guidelines for avian monitoring and impact mitigation at proposed wind energy development sites in southern Africa have been drawn up under the auspices of the Endangered Wildlife Trust and BirdLife South Africa.272

In respect of the massive network of power pylons and cables that was already in existence before environment impact assessments were made obligatory by the law, the Eskom-EWT Strategic Partnership works to mitigate dangers posed to birds. This is an entirely voluntary endeavour which was entered into by Eskom and the Endangered Wildlife Trust (EWT) in 1996, and is not driven by the law. Its benefits are twofold. The conservation of birds is served, and power interruptions caused by bird electrocutions and other bird-induced damage are minimised.273 A case study of a successful intervention in respect of an eagle species dealt with a juvenile Crowned Eagle that had just left the nest and was frequently using an electricity pylon as a perch. In view of the young eagle's lack of flying skills, the danger of electrocution during clumsy landings or wing-flapping was deemed to be particularly great. Eskom staff promptly modified the particular pylon to eliminate this danger.274

The established culture of cooperation between Eskom and the EWT to mitigate electrocutions and collisions is a very positive outcome and demonstrates that conservation laws are not essential for sound conservation in all instances. However, the fact that environmental laws are not governing the (satisfactory) current situation makes its future implementation vulnerable to changes in the management, policy or finances of the two juristic persons involved.

In respect of farm reservoirs, in which birds of prey tend to drown, no specific legislative provisions are in force. The Endangered Wildlife Trust and provincial conservation authorities endeavour to bring these dangers to the attention of landowners and to advise on measures that can be taken to prevent or minimise drownings.275

5.2.5 Disturbance

Some provincial laws define "hunt" to include "disturb willfully"276 and others contain provisions that prohibit disturbing the nest or eggs of any wild bird.277 Some laws define "capture" to include "to pursue with intent to capture, catch or take", thus bringing intentional disturbance within their ambit.278

5.3 Captive breeding

As far as is known, no captive breeding programme with the aim of conserving eagles is currently operational in South Africa. Should this become necessary, the TOPS Regulations appear to contain adequate provisions to regulate and manage such endeavours.

6 Enforcement

A cause of concern in the conservation status of eagles in South African law relates to compliance and enforcement. Several commentators have voiced an opinion that the environmental laws in force in South Africa are impressive and do not display significant shortcomings. The reason why environmental management often falls short of the desired standards must rather be sought in inadequate compliance and enforcement.279 Perhaps the most important contributory factor in this respect is a deficit in resources, both human and financial. Such constraints are reportedly experienced by environmental authorities worldwide, but can be expected to be particularly acute in developing countries such as South Africa.280 Whereas the South African government and non-governmental organizations must receive credit for the commitment they have shown for environmental concerns, other more pressing issues vie for legislative attention and resource allocation. In the face of unemployment, water deficits, energy deficits, HIV/Aids, influxes of illegal immigrants from neighbouring territories, high levels of violent crime, and similar grave issues, biodiversity concerns recede in importance, even though sound environmental management and sustainable development are arguably prerequisites for addressing all of the issues perceived as more pressing. In addition to this, the comparatively small percentage of resources that does get allocated to environmental management is usually employed first to fight high-profile environmental misdeeds such as rhinoceros poaching for the illegal horn trade.

Most of the legal provisions aimed at the protection of eagles and other forms of wildlife are negative in nature, is so far as they tend to prohibit the performance of certain acts, and often visit transgressions of these prohibitions with criminal sanctions such as fines or imprisonment. However, sight must not be lost of enabling legal provisions that create a possibility for positive management actions to be implemented. Examples are provisions relating to compulsory as well as discretionary conservation plans.281 Such plans can be powerful instruments in the conservation of species. An inspirational international example of the use of such plans to reverse a catastrophic decline of an eagle species can be found in the conservation initiatives of Spain and the European Union in respect of the Spanish Imperial Eagle.282 Not many Biodiversity Management Plans have been drafted in South Africa yet, and as far as could be ascertained none has yet dealt with an eagle species.283 However, an enabling legal framework is in place and should be used to the benefit of South African biodiversity in general and eagles in particular.

8 Conclusion and recommendations

This contribution is an attempt to bring together, in a more or less structured and logically organised compendium, a commentary on the multitude of laws and other legal instruments that exercise a fairly direct influence on the conservation status of the eagles occurring in South Africa. Throughout, an attempt was made to engage critically with the material, but due to the vast scope and complexity of the subject, the critical remarks that are offered here still have a somewhat exploratory and tentative character. Critical research can be conducted in more depth in respect of several sub-topics identifiable from this contribution. Nevertheless, a number of recommendations may be made at this stage. Broadly, these recommendations may be grouped into two categories: (1) recommendations for law reform, and (2) recommendations for better application of the law as it stands today.

8.1Law reform

In general, the laws influencing the conservation status of South African eagles are not deemed to be in need of many reforms. Nonetheless a few aspects may be considered in this regard:

After publication of the new Red List, the status of some eagle species in the NEMBA lists should be changed to bring their legal status in line with the Red List status.

All the eagle species, and indeed all species of birds of prey, that are not identified in the NEMBA lists as Critically Endangered, Endangered, or Vulnerable, must be listed as Protected for the purposes of NEMBA.

While the Eskom-EWT Strategic Partnership yields satisfactory results without the intervention of biodiversity laws, an express obligation in law on Eskom and other suppliers to make their energy-generating and energy-transmitting structures safer for eagles and other birds appears to be desirable in the medium term.

8.2Better application of the law

South Africa has highly advanced biodiversity legislation in place, but merely having the laws on the statute books will not save species. Compliance with and enforcement of the relevant laws should receive priority attention.

Many compulsory and enabling provisions of South African biodiversity legislation are not used optimally to ensure the survival of eagles and other birds of prey. The law creates a mechanism whereby Biodiversity Management Plans may be drawn up to work towards the continued survival of certain species. These plans may be initiated by Non-Government Organisations. It is highly desirable that such organisations should not wait for the state to act, but should seize this opportunity.

The law also makes research into conservation issues compulsory. It is vital to gain knowledge of the juvenile dispersal of several eagle species, including species with significant breeding populations in protected areas, in order to be able to plan and implement conservation activities to ensure that sufficient numbers of young birds reach sexual maturity and can contribute to reproduction.

The law makes education in respect of certain aspects of sustainable development compulsory. A component enlightening the public, with special emphasis on children, about the ecological value of eagles and other raptors, and the threats encountered by them in modern South Africa, should be included in such education.

Convention on Migratory Species 2008 www.cms.int. Convention on Migratory Species 2008 Memorandum of Understanding on the Conservation of Migratory Birds of Prey in Africa and Eurasia (the Raptors MoU)www.cms.int/species/raptors/ [date of use 15 Mar 2013] [ Links ]